Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Adoption and Children (Scotland) Act 2007

Type Act of the Scottish Parliament

Publication 2007-01-15

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Part 1 — Adoption

Chapter 1 — The adoption service

The adoption service

Duty of local authority to provide adoption service

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(1) Each local authority must—

(a) to the extent that it already provides an adoption service in its area, continue to do so, and

(b) to the extent that it does not provide such a service in its area, provide such a service there.

(2) In this Act, “adoption service” means services designed to meet the needs, in relation to adoption, of persons mentioned in subsection (3).

(3) Those persons are—

(a) children who may be adopted

(b) persons who have been adopted,

(d) natural parents of persons who have been adopted,

(e) persons who, before the placing of a child for adoption or the adoption of a child, treated the child as their child,

(f) siblings (whether of the whole-blood or half-blood), natural grandparents and former guardians of—

(i) children mentioned in paragraph (a), or

(ii) persons mentioned in paragraph (b),

(g) persons who may adopt a child,

(h) persons who have adopted a child,

(i) in relation to persons mentioned in paragraph (g) or (h), children of, or children treated as children of, such persons, and

(j) any other persons who are—

(i) affected by the placing, or proposed placing, of a child for adoption, or

(ii) affected by an adoption.

(4) An adoption service includes, in particular, services consisting of or including—

(a) arrangements for assessing children who may be adopted,

(b) arrangements for assessing prospective adopters,

(d) the provision of information about adoption to any of the persons mentioned in subsection (3), and

(e) adoption support services.

(5) In this Act, “adoption support services” means services consisting of or including the provision of—

(a) counselling to any of the persons mentioned in subsection (3),

(b) guidance about adoption to such persons,

(c) any other assistance in relation to the adoption process that the local authority providing an adoption service in a particular case considers appropriate in the circumstances of that case.

Carrying out of duties imposed by section 1

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(1) For the purpose of carrying out the duties imposed by section 1(1) efficiently and effectively, a local authority must have regard to—

(a) the other services that it provides in its area in carrying out the functions of a local authority under any of the enactments mentioned in section 5(1B) of the Social Work (Scotland) Act 1968 (c. 49) (power of the Scottish Ministers to issue certain directions) including, in particular, those functions in so far as they relate to children, and

(b) any registered adoption service provided there.

(2) A local authority may carry out the duties imposed by section 1(1) by securing the provision of its adoption service by a registered adoption service.

(3) In this section, “registered adoption service” means an adoption service provided as mentioned in paragraph8(1)(b) of schedule 12 to the Public Services Reform (Scotland) Act 2010 (asp 8) and registered under Part 5 of that Act.

Adoption service: regulations

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The Scottish Ministers may by regulations—

(a) amend subsection (4) or (5) of section 1 by—

(i) adding further services,

(ii) modifying the services mentioned in those subsections,

(b) make further provision about adoption services.

Local authority plans

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Guidance

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(1) Subsection (2) applies where a local authority is carrying out its function under section 1 to continue to provide, or to provide, an adoption service or to secure the provision of such a service.

(2) The local authority must have regard to any guidance given by the Scottish Ministers.

(3) Guidance such as is mentioned in subsection (2) may, in particular, contain provision in relation to—

(a) how a local authority should assess (or reassess) the needs of a person for adoption support services,

(b) how the power conferred by section 9(1)(b) should be exercised,

(d) how responsibility for the provision of an adoption service should be transferred from one local authority to another.

(4) The Scottish Ministers may vary or revoke any guidance such as is mentioned in subsection (2).

Assistance in carrying out functions under sections 1 and 4

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(1) Where it appears to a local authority that an appropriate person could assist the authority in carrying out any of its functions under section 1 ..., it may require the person to assist the authority in the way specified in the requirement.

(2) An appropriate person need not comply with a requirement made by virtue of subsection (1) if—

(a) it would not be reasonably practicable to do so,

(b) doing so would be incompatible with the person's functions (whether statutory or otherwise), or

(3) For the purposes of this section, a person is “appropriate” if the person is—

(a) another local authority,

(b) a Health Board constituted under section 2 of the National Health Service (Scotland) Act 1978 (c. 29),

Meaning of “adoption service” in Regulation of Care (Scotland) Act 2001

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Adoption agencies: regulations about carrying out of functions

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(1) The Scottish Ministers may make regulations for any purpose relating to the carrying out of its functions by a registered adoption service.

(2) The Scottish Ministers may make regulations with respect to the carrying out by local authorities of their functions in relation to adoption.

(3) Regulations under this section may in particular make provision for or in connection with—

(a) specifying circumstances in which a local authority proposing to make arrangements for the adoption of a child must apply for a permanence order which includes provision granting authority for the child to be adopted,

(b) requiring such an application to be made within a period specified in the regulations.

Adoption support services

Assessment of needs for adoption support services

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(1) A local authority—

(a) must, on the request of a person mentioned in any of paragraphs (a) to (i) of subsection (3) of section 1, make an assessment of the needs of the person for adoption support services,

(b) may, on the request of a person mentioned in paragraph (j) of that subsection, make an assessment of the needs of the person for such services.

(2) Where a local authority makes an assessment of the needs of a person for adoption support services under subsection (1), the authority must decide whether the needs of the person call for the provision of such services.

(3) A local authority making an assessment of needs under subsection (1) must—

(a) do so in such manner as may be prescribed by regulations made by the Scottish Ministers, and

(b) have regard to such matters as may be so prescribed.

Provision of services

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(1) On the request of a person mentioned in subsection (3) of section 1, a local authority must provide ... services of a type mentioned in paragraph (d) of subsection (4) of that section to the person.

(2) On the request of a person mentioned in paragraph (a), (c) or (g) of subsection (3) of section 1, a local authority—

(a) must provide ... services of a type mentioned in paragraphs (a) to (c) of subsection (4) of that section to the person, and

(b) may, without prejudice to subsection (4)(a), provide adoption support services to the person.

(3) For the purposes of subsection (2), it is immaterial whether the local authority has made an assessment of the needs of the person under section 9(1)(a).

(4) Where a local authority decides under section 9(2) that the provision of adoption support services is called for in respect of—

(a) a person mentioned in any of paragraphs (a) to (i) of subsection (3) of section 1, the authority must provide the services to the person,

(b) a person mentioned in paragraph (j) of that subsection, the authority may provide the services to the person.

Urgent provision

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(1) If in the opinion of a local authority a person mentioned in subsection (3) of section 1 requires adoption support services as a matter of urgency, nothing in section 9 prevents the authority from providing, or arranging for the provision of, those services for the person without first carrying out an assessment under that section of the person's needs for adoption support services.

(2) If by virtue of subsection (1) a local authority provides, or arranges for the provision of, adoption support services the authority must, as soon as is reasonably practicable after such provision, make an assessment of the person's needs for adoption support services.

Power to provide payment to person entitled to adoption support service

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(1) Subsection (2) applies where a local authority—

(a) has, in respect of a person, an obligation to provide, or secure the provision of, an adoption support service under this Part, or

(b) has a power so to provide and determines it should provide.

(2) Subject to subsection (4), the authority may, after having regard to the matters mentioned in subsection (3), provide the person with a payment instead of the service.

(3) Those matters are—

(a) the person's eligibility for assistance from any other body,

(b) where the person is so eligible, the availability to the person of that assistance at the time when the service might have been provided to the person by the authority,

(d) the person's need for the service.

(4) A payment under subsection (2) may be made subject to such conditions (including conditions as to repayment) as the authority considers reasonable.

(5) In imposing conditions under subsection (4), the authority must have regard to the person's eligibility for assistance from any other body.

Regulations

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(1) The Scottish Ministers may by regulations make provision for or in connection with—

(a) determining in circumstances specified in the regulations which local authority is, or may become, responsible for—

(i) the provision of an adoption service,

(ii) the making of an assessment of needs under section 9(1)(a),

(b) determining the time at which, and the circumstances in which, a local authority's duty to provide an adoption service ends,

(c) specifying the circumstances in which a local authority may continue to provide an adoption service after the time determined by virtue of paragraph (b) has passed,

(d) specifying the arrangements a local authority may make when a person in respect of whom the authority provides, or has a power or a duty to provide, an adoption service moves outwith the authority's area,

(e) specifying the persons with whom such arrangements may be made,

(f) assessing the needs for adoption support services of persons who have moved or who intend to move—

(i) from one local authority area to another,

(ii) from outwith Scotland to Scotland.

(2) The power conferred by subsection (1) may be exercised so as to make different provision for different adoption services.

Chapter 2 — The adoption process

Preliminary

Considerations applying to the exercise of powers

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(1) Subsections (2) to (4) apply where a court or adoption agency is coming to a decision relating to the adoption of a child.

(2) The court or adoption agency must have regard to all the circumstances of the case.

(3) The court or adoption agency is to regard the need to safeguard and promote the welfare of the child throughout the child's life as the paramount consideration.

(3A) When considering the child's welfare, the court is to have regard to any risk of prejudice to the child's welfare that delay in proceedings would pose.

(4) The court or adoption agency must, so far as is reasonably practicable, have regard in particular to—

(a) the value of a stable family unit in the child's development,

(b) the child's ascertainable views regarding the decision (taking account of the child's age and maturity),

(d) the likely effect on the child, throughout the child's life, of the making of an adoption order.

(5) Where an adoption agency is placing a child for adoption it must have regard, so far as is reasonably practicable, to the views of the parents, guardians and other relatives of the child.

(6) In carrying out the duties imposed on it by subsections (2) to (4) an adoption agency must, before making any arrangements for the adoption of a child, consider whether adoption is likely best to meet the needs of the child or whether there is some better practical alternative for the child.

(7) If an adoption agency concludes that there is an alternative such as is mentioned in subsection (6), it must not make arrangements for the adoption of the child.

(8) Without prejudice to the generality of subsection (4)(b), a child who is aged 12 or over is presumed to be of sufficient age and maturity to form a view for the purposes of that subsection.

Pre-adoption requirements

Child to live with adopters before adoption order made

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(1) Where—

(a) subsection (2) applies, an adoption order may not be made in relation to a child unless the conditions in subsection (3) are met,

(b) subsection (2) does not apply, an adoption order may not be made in relation to the child unless the condition in subsection (4) is met.

(2) This subsection applies if—

(a) the person applying for the adoption order (the “applicant”), or one of the applicants, is a parent, step-parent or relative of the child, or

(b) the child was placed with the applicant, or applicants, by an adoption agency.

(3) The conditions are—

(a) that the child is at least 19 weeks old, and

(b) that at all times during the period of 13 weeks immediately preceding the making of the order the child's home was with the applicants.

(4) The condition is that at all times during the period of 12 months immediately preceding the making of the order the child's home was with the applicants.

(5) In relation to—

(a) an adoption proposed to be effected by a Convention adoption order, or

(b) an adoption of a child habitually resident outwith the British Islands which is proposed to be effected by an adoption order other than a Convention adoption order,

subsection (3)(b) has effect as if the reference to a period of 13 weeks were a reference to a period of 6 months.

Home visits

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(1) Where a child was placed for adoption with the applicants by an adoption agency, an adoption order may not be made unless the appropriate court is satisfied that the condition in subsection (2) is met.

(2) The condition is that sufficient opportunities to see the child with the applicant or, in the case of an application by two applicants, both of them together in the home environment have been given to the agency.

(3) Where the child was not placed for adoption with the applicants by an adoption agency, an adoption order may not be made unless the appropriate court is satisfied that the condition in subsection (4) is met.

(4) The condition is that sufficient opportunities to see the child with the applicant or, in the case of an application by two applicants, both of them together in the home environment have been given—

(a) where the home is in Scotland, to the local authority within whose area the home is situated,

(b) where the home is outwith Scotland, to any local authority.

Reports where child placed by agency

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(1) Subsection (2) applies where an application for an adoption order relates to a child placed for adoption by an adoption agency.

(2) The agency must—

(a) submit to the court a report on—

(i) the suitability of the applicants, and

(ii) any other matters relevant to the operation of section 14, and

(b) assist the court in any manner the court directs.

Notification to local authority of adoption application

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(1) Subsection (2) applies where a child was not placed for adoption with the applicants by an adoption agency.

(2) An adoption order may not be made in relation to the child unless the applicants have, at least 3 months before the date of the order, given notice to the appropriate local authority of their intention to apply for the order.

(3) In subsection (2), “appropriate local authority” means—

(a) where the applicants have their home in Scotland, the local authority within whose area the home is situated,

(b) where they have their home outwith Scotland, any local authority.

Notice under section 18: local authority’s duties

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